This is a blog about the use of emerging technologies to boost the governance of public procurement. It used to be a blog on EU law, with a focus on free movement, public procurement and competition law issues (thus the long archive of entries about those topics). I use it to publish my thoughts and to test some ideas. All comments are personal and in no way bind any of the institutions to which I am affiliated and, particularly, the University of Bristol Law School. I hope to spur discussion and look forward to your feedback and participation.

Even if they may seem two rather disconnected areas of legal practice, reading cases on EU public procurement and on EU trademark law sometimes offers interesting insights into broader issues of EU Economic Law or, more generally, EU Law. For instance, some recent case law on the duty to provide reasons under each of the specific adminsitrative procedures that govern contract tendering and trademark registration shows what, in my view, is rather a contradiction.

On the one hand, and as commented recently here, the General Court issued his Judgment in Sviluppo Globale GEIE v Commission where it imposed a very demanding standard for the duty to give reasons in procurement cases. Indeed, the GC held that:

27 [...] despite the information contained in [debriefing] letters, and taking into account the relevant case law [Evropaïki Dynamiki/OEDT, T-63/06 at para 112, and Evropaïki Dynamiki/Commission, T-300/07 at para 50]the applicant has not received a responsefromtheCommissionshowingin a clearandunequivocal fashion the reasoningfollowed in theadoption of the contested decision. [...]

30 [...] theCommissionhas not madea formal comparisonof the projects describedbythe applicant in itsexpression of interestagainst the benchmark of the threecriteriaset out in paragraph21.3.a) ofthecontract notice.In particular, itdid not explainwhich ofthese three criteriawas notsatisfied bythe projects [submitted by the applicant].In these circumstances, the applicantwas notable to knowifthe reason for therejection of her expression of interest in theprocurementin question concernedthe minimum number ofprojects implemented,theirbudget,their completionin a timely manneror the areas in whichtheywere executed. [...]

40 In light ofthe foregoing,itmust be heldthat theapplicant properly submits that,to the extent thattheCommissionhas not developedfurther the reasons whyher candidacydid not meet the technicalselection criteriaset in thecontract notice,it has notreceived in a clearandunequivocal fashion thereasoning of theCommission, whichwould have allowed herto knowthe reasons for thedecisionnot to be included inthe shortlistof thecontract at issue.Moreover,she couldnotsuewithout knowingwhat thosereasons are.It is noteworthyin this regardthat the rightto good administrationunder Article41 of theCharter of Fundamental Rightsof the European Union(OJ 2007C 303, p.1) sets an obligation ontheadministrationto justify its decisionsand that this motivationis not onlyin general, the expression ofthe transparency ofadministrative action, but it mustalso allowthe individual todecide, with full knowledgeof the facts, ifit is usefulfor her toapply to a court.There is therefore aclose relationship betweentheobligation to state reasonsandthe fundamental right toeffective judicial protectionand the rightto an effective remedyunder Article47 of the Charterof Fundamental Rights. (GC T-183/10, at paras 27 to 40, emphasis added, own translation from French).

As I said, this detailed debriefing standard imposes a very high burden on the contracting authorities and entities to provide very detailed reasons concerning every single criterion used in the evaluation of bids. Therefore, contracting authorities and entities will have a powerful incentive to be extremely cautious in the level of detail they provide in debriefing letters and meetings and, in case of doubt, they may feel that the safer position is to err on the side of providing excessive rather than insufficient information. And this generates some troubling incentives and risks, as discussed here.

On the other hand and on the same day, the GC issued its Judgment of 10 October 2012 in case Case T-569/10 Bimbo v OHMI - Panrico (BIMBO DOUGHNUTS), where the challenger of OHIM's decision contended, among other grounds for appeal, that OHIM had not expressly addressed some of the arguments presented during the trademark review procedure. In this case, the GC found that:39 The applicant is in fact arguing that the Board of Appeal infringed the obligation to state reasons provided for in the first sentence of Article 75 of Regulation No 207/2009

39 The applicant is in fact arguing that the Board of Appeal infringed the obligation to state reasons [...]

40 It is to be observed that in the present case the Board of Appeal set out in the contested decision the facts and legal considerations which led it to take that decision [...]41 As regards, more particularly, the applicant’s argument that the Board of Appeal failed to respond to two specific arguments which it had put forward during the procedure before OHIM, the following points should be made. 42 Firstly, with regard to the applicant’s argument that the word ‘doughnuts’ is regarded by the Spanish public as descriptive of the goods in question, the Board of Appeal addressed that argument by stating, in paragraph 18 of the contested decision, that for the average Spanish consumer (excluding those who speak English) the word ‘doughnuts’ did not describe the goods or their qualities. It also held that the earlier sign, like the sign applied for, would be perceived as a foreign or fantasy term ‘by most consumers’. 43 Thus, the Board of Appeal implicitly held that the majority of average Spanish consumers did not speak English or, at least, did not speak it well enough to know the meaning of the word ‘doughnuts’. In that context, it should be observed that the reasoning of the decision of a Board of Appeal may be implicit, on condition that it enables the persons concerned to know the reasons for the Board of Appeal’s decision and provides the competent Court with sufficient material for it to exercise its power of review (Case T‑304/06 Reber v OHIM – Chocoladefabriken Lindt & Sprüngli (Mozart) [2008] ECR II‑1927, paragraph 55). 44 In this case, the Board of Appeal’s reasoning rejecting the argument based on the allegedly descriptive character of the ‘doughnuts’ element of the trade mark was sufficient to enable the applicant to understand the reasons that had led the Board of Appeal to adopt the contested decision and to enable the Court to exercise its power of review. 45 Secondly, with regard to the applicant’s argument based on the reputation of the ‘bimbo’ element of the trade mark applied for, it is true that the Board of Appeal did not explicitly address that argument in the contested decision. However, it pointed out that the ‘doughnuts’ element in the trade mark applied for ‘[would] catch the attention of the relevant Spanish public, as it appears unusual in Spanish due to the atypical combination of vowels “ou” and the accumulation of consonants “ghn”’. The Board thus held that that element could not be disregarded in the comparison in question. Thus, it follows from the contested decision that the Board of Appeal did not consider that the ‘bimbo’ element of the mark applied for dominated the overall impression created by the mark applied for to such an extent that the other component – the ‘doughnuts’ element – could be disregarded. The reasoning relating to this point was also sufficient to enable the applicant to know the reasons for the contested decision and to enable the Court to review the legality of the decision on that point. 46 The statement of reasons in the contested decision is thus sufficient in law. (GC T-569/10, at paras 39 to 46, emphasis added).

In my reading, the position of the GC in Bimbo Doughnuts is a more balanced review of the reasons provided by the authority than in Sviluppo Globale, and the focus is ultimately functional. Even if the bottom limit or the minimum standard concerning the duty to give reasons set by the GC in both Sviluppo Globale and Bimbo Doughnuts points towards the same functional requirement [ie that the affected party (either a bidder or a trademark applicant) must be able to decide whether to apply to a court to challenge the decision on the basis of its supporting elements, and that such court must be able to exercise its power of review], there seems to be a clear contradiction--or, at the very least--a significant discrepancy in the level of scrutiny in both cases.

Whereas Sviluppo Globale indicates the need to "showin a clearandunequivocal fashion the reasoningfollowed in theadoption of the contested decision", Bimbo Doughnuts leaves more room to administrative restrictions of the information provided by accepting that "the reasoning of the decision may be implicit and even not expressly address all points raised by the applicant", provided always that the information given is sufficient to understand the reasons for the contested decision. In my opinion, the second position is much less formal and allows for a more workable system of administration of EU rules. Therefore, it seems preferable and should be extended to the public procurement arena and, more generally, to all areas of EU Law.

In this regard, the codification of a proper set of rules (or standards) on EU Administrative Law seems a worthy regulatory exercise. For very interesting proposals, please see the projects conducted under the Research Network on EU Administrative Lawhttp://www.reneual.eu/.